[P]recedent does not directly seek evidence as of the meaning of a provision at the time it was passed. It focuses not on a consideration of the meaning of a text, but on a judicial decision in applying that text. Moreover, it is clear that the Supreme Court and lawyers speak of precedent differently from factors contributing directly to meaning. For instance, justices never claim to overrule the text or structure of the Constitution. Only a constitutional amendment can accomplish that feat. But justices can and have acknowledged overruling precedent.

Even if precedent does not operate to directly fix the meaning of the Constitution, originalism still helps integrate its application with others factors that guide interpretation. First, it is a question of the original meaning whether following precedent at the expense of original meaning is permissible. Mike Rappaport and I have argued previously that original Constitution contemplated precedent. We show that judges had an obligation to follow at least a weak version of precedent, because the concept of judicial power in Article III so requires: A judge who did not even consider previous decisions would not be acting like a judge. Beyond that limited constraint, however, precedent was a matter of common law for the judiciary to reformulate and the legislature to revise.

But originalism is helpful even beyond bestowing legitimacy on the consideration of precedent, because understanding its virtues helps formulate the best precedent rules. We can assess when to follow precedent as opposed to following the original meaning only by comparing the benefits of original meaning to the benefits of following precedent. Then we can propose rules that optimize the benefits and minimize the costs of following precedent. Without this kind of comparison, our rules will not integrate the practice of following precedent with the practice of following the meaning of the Constitution and thus not with the other modalities relevant to its meaning.

In the next post, I will consider how this integration should take place.

09/29/2018

Before the nomination of Brett Kavanaugh to the Supreme Court turned to allegations of sexual assault (and alleged sexual misbehavior), the focus was on originalism as Kavanaugh’s judicial philosophy. Peek at the pages of National Review and one sees an interesting intramural debate: what kind of originalist will Kavanaugh be? Will he be an “old originalist” (such as Robert Bork, and, at least for the first half of his judicial career, Justice Scalia) concerned with judicial restraint, or a “new originalist” (such as Justices Neil Gorsuch and Clarence Thomas) wherein the watchword is “judicial engagement” and envisioning a more muscular role for the Court to check Congress and the administrative state?

The argument here is that this dichotomy between the two forms of originalism — old and new — is problematic and only coherent from a (deeply) internalist view of originalism, one that never leaves the pages of the law reviews, stylized “fun house mirror” histories of constitutional conservatism, and a desire to, acontextually and ahistorically, view originalism as largely untouched by politics. Instead — and in the words of one of key players of originalism’s development — originalism was always a “counterrevolutionary” approach to the Constitution designed not simply to roll back liberal court decisions but to challenge the New Deal settlement. In order to understand why, we need to first situate ourselves historically.

Without endorsing all of the claims and implications of the post, I agree that the supposed divide between "old" originalism as mostly judicial restraint and "new" originalism as judicial "engagement" is overdone, especially as applied to Scalia. Scalia's originalism -- and mainstream originalism dating from his early time on the Court -- endorsed judicial "enagagement" (though not with that word) to protect rights and structures it found in the Constitution's original meaning. It was "restrained" only in insisting that judges not go beyond the original meaning. The divergence between Scalia's originalism and more recent forms of judicial engagement centers on what rights they would find in the Constitution's original meaning, but not materially on the role of judges.

It may surprise students of the life and thought of James Madison to see him described as a game theorist. Madison worked for his entire life in the world of politics, which was never for him a game. But Jack N. Rakove, in A Politician Thinking: The Creative Mind of James Madison, succeeds in suggesting that Madison’s approach built upon the model of what we now recognize as a game-theoretic methodology. Rakove, the Pulitzer Prize-winning Stanford University professor, interprets this as taking the measure of political possibilities in relation to the possibilities inherent in political situations and not in terms of ideals.

One might be tempted to assume that the goal here is to oppose the conception of Madison the idealist to that of Madison the political opportunist, since the game-theoretic approach consists entirely in optimizing strategic advantage in a given set of possibilities—as opposed to creative, architectural intervention in order to restructure those possibilities. But Rakove captures both elements of the “thinking politician”; that is, he does not reject the Madison who declared that “justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

That all-or-nothing gambit certainly defies game-theoretic posturing. Rakove, though, makes the linchpin of his argument for Madison-the-game-theorist the famous series of essays in The Federalist Papers that eventuate in the dramatic affirmation quoted above. Accordingly, he believes there is a way to mediate between idealism and opportunism that faithfully captures the true Madison, and along the way serves the heuristic purpose of redefining the question of whether Madison was consistent throughout his political career.

This intriguing argument does not, in the end, work. Let me here highlight only two of the several reasons why.\

James Madison presented his most celebrated and studied political ideas in his contributions to The Federalist, the essays that he, Alexander Hamilton, and John Jay wrote in 1787–1788 to secure ratification of the U.S. Constitution. As Jack N. Rakove shows in A Politician Thinking, however, those essays do not illustrate the full complexity and vigor of Madison’s thinking. In this book, Rakove pushes beyond what Madison thought to examine how he thought, showing that this founder’s political genius lay less in the content of his published writings than in the ways he turned his creative mind to solving real political problems.

Rakove begins his analysis by examining how Madison drew upon his experiences as a member of the Continental Congress and as a Virginia legislator to develop his key ideas. Madison sought to derive lessons of history from his reading and his own experience, but he also thought about politics in terms of what we now recognize as game theory. After discussing Madison’s approach to the challenge of constitutional change, Rakove emphasizes his strikingly modern understanding of legislative deliberation, which he treated as the defining problem of republican government. Rakove also addresses Madison’s deliberation about ways to protect the rights of individuals and political minorities from the rule of “factious majorities.” The book closes by tracing how Madison developed strategies for maintaining long-term constitutional stability and adjusting to the new realities of governance under the Constitution.

Engaging and accessible, A Politician Thinking offers new insight concerning a key constitutional thinker and the foundations of the American constitutional system. Having a more thorough understanding of how Madison solved the problems presented in the formation of that system, we better grasp a unique moment of political innovation.

This Article presents new information on Justice Bushrod Washington's circuit opinion in Corfield v. Coryell. My findings are based on the discovery of Justice Washington's original notes on Corfield, which are held by the Chicago History Museum.

09/26/2018

Looking at the cases granted review so far for the the Supreme Court's upcoming term, it does not appear that this year will rival last year in terms of high-profile cases. Nonetheless, there are several of originalist interest. (A full list of granted cases is available from SCOTUSblog here). Here are four worth watching:

This case provides an opportunity for a narrow resurrection of the nondelegation doctrine, and perhaps invites a broader historical inquiry into the doctrine's original foundations. A decision for the challenger has little chance of reestablishing a broad nondelegation doctrine because a narrow resolution is available -- the challenged statute appears to provide literally no guidance to the attorney general and so might be unconstitutional even under very permissive versions of the doctrine. But any victory for a challenger under the nondelegation doctrine, even a narrow one, would put the doctrine back on the table in a way it hasn't been since the regrettable (to many originalists) decision in Whitman v. American Trucking.

This case is a direct invitation to consider the historical foundations of the separate sovereigns doctrine. I have no opinion on the merits, except that the doctrine as it currently stands seems to be something invented by the Court, not on anything based on text or history. Whether or not the doctrine is found to have adequate historical foundations, the result may give the law in this area a more sound originalist basis.

The non-incorporation of the excessive fines clause seems like a bizarre anomaly -- if one accepts incorporation generally, it's hard to think of a reason why this clause in particular would not be incorporated. The case offers an opportunity to, as Justice Scalia used to say, "clean up the law."

This is another area that invites "clean up" and better historical analysis (although as William Baude and Stephen Sachs argue in an amicus brief, perhaps this is not the right case for it).

In sum, the term so far offers several opportunities to move the law in originalist directions -- and as none of the cases have a strong political valence, perhaps they offer the prospect of broad agreement among the Justices.

09/25/2018

My debate last week with Eric Segall is now on Youtube, in a much better format than we've had available for the last week. Let us know if you'd like us to present the same show in your town!

My handout is here--I'd also be happy to debate anyone else who would like to offer their own answers to my 10 questions.

Last February, I was Eric's respondent at the Originalism Works-in-Progress Conference; see here for his presentation, here for my comments, and here for the discussion. And see here for his book, Originalism as Faith, available now in Kindle and any day now in print.

Katie R. Eyer (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Statutory Originalism and LGBT Rights (Wake Forest Law Review, forthcoming) on SSRN. Here is the abstract:

In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality. Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII. Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims. As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.

But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.” Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed. In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.

This Article contends that the “original public meaning” approach raised by opponents of LGBT inclusion is neither so distinctive, nor so uncontroversial, as its proponents have suggested. “Original public meaning” itself is a modality of statutory interpretation that has essentially no pedigree in the federal statutory interpretation case law. And yet the arguments of its proponents do bear a striking resemblance to another well-established, but now discredited approach: looking to the expectations or intent of Congress to limit broad statutory text. Moreover, the specific approach to “original public meaning” taken by opponents of LGBT inclusion—looking to “original expected applications”—is one that should concern both civil rights advocates and originalists alike. Thus, courts ought to reject the novel “statutory originalism” arguments that have been raised in opposing LGBT employment equality claims.

09/24/2018

In my last post, I explored in what way Hayek might be thought of as an originalist. I wrote that Hayek relied to a significant extent on the 9th Amendment and the Privileges and Immunities Clause for his claim that the Constitution was intended to protect traditional principles that were not textually listed. In this post, I want to explore what I regard as the meaning of these two clauses and whether they serve the purposes that Hayek imagines for them.

Hayek states the problem as such. Having dispensed with the 9th Amendment and Privileges and Immunities Clauses, judges found “themselves in a somewhat peculiar position when they encountered uses of legislative power which, they felt, it had been the intention of the Constitution to prevent but which the Constitution did not explicitly prohibit.” Hayek states that the Supreme Court used the Due Process Clause but that they should have been able to use the 9th Amendment and Privileges and Immunities Clauses.

The 9th Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Hayek sees this as a reference to unenumerated rights (which it seems to be) and as suggesting that those rights should be treated as constitutional rights enforceable by judges (which is far more questionable). After all, the text of the Amendment does not say that these unenumerated rights should be protected as constitutional rights, which it could have done far more clearly.

There are a couple of possible meanings of the 9th Amendment which I find plausible. Here let me mention one of them defended by Michael McConnell. As I stated in a previous blog post, under this view, the 9th Amendment

protects certain natural rights, but not by conferring constitutional status on those rights. Instead, it protects those rights as natural rights [in the way that natural rights] were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.

It also fits the 9th Amendment text quite well.

If this is the correct meaning of the 9th Amendment, would it operate to protect the rights that Hayek believes the Constitution was intended to protect? To a certain extent, yes. Certainly, some of the natural rights would protect the individual rights, including property rights, that Hayek is concerned about. Ultimately, how many of these rights are protected will turn on how extensive the natural rights were and whether Congress is willing to make the clear statement necessary to override those natural rights.

Now consider the Privileges and Immunities Clause, which provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Again, there are many interpretations of the Clause, but in my opinion the best view is the following. The privileges or immunities of citizens of the United States are the privileges that are enjoyed by citizens throughout the nation. What are those privileges or immunities? The ones that citizens have been provided by a very large proportion of the states (and which have been provided for a significant period of time). Under this view, this Clause has the effect of ensuring that no state can take away privileges that have been traditionally respected by the states of the country.

Thus, here is a provision that affords protection against “uses of legislative power which [judges] felt, it had been the intention of the Constitution to prevent but which the Constitution did not explicitly prohibit.” These traditional rights would be protected by the Privileges and Immunities Clause. While the Clause only applies against the states, it would protect many of the rights about which Hayek was concerned.

I have posted a new short essay on SSRN: Congress’ Power to Define 'Natural Born': A Reply to Professor Lee (American University Law Review Forum. vol 68, 2018, forthcoming). As the name indicates, it is a reply to Professor Thomas H. Lee's outstanding article “Natural Born Citizen,” 67 Am. U. L. Rev. 327 (2017) (SSRN version available here). Here is the abstract:

Professor Thomas Lee and I independently wrote recent articles on the original meaning of the Constitution’s “natural born Citizen” clause, reaching somewhat different conclusions. This brief reply comments on our agreements and differences.

Two points of agreement merit particular emphasis. First, we agree that the original meaning of “natural born” in the eligibility clause can be understood in significant part through its English law antecedents, specifically the English law concept of natural born subjectship. Second, we agree on the basic evolution of English subjectship law – specifically, that it began in ancient times as almost exclusively based on the principle of jus soli, or subjectship arising from a person’s birth within sovereign territory, and evolved through a series of statutes to also include elements of the continental European principle of jus sanguinis, deriving subjectship from the subjectship of a person’s parents.

We principally disagree on how the Constitution, through the eligibility clause, adopted English law’s incorporation of jus sanguinis. In Professor Lee’s view, the eligibility clause adopted English subjectship law’s definition of “natural born” largely as it stood in 1787. My view, as described in more detail in The Original Meaning of “Natural Born,” is that the clause – combined with Congress’ power over naturalization – gave Congress some power to adopt and define the parameters of jus sanguinis citizenship, similar to parliament’s power to adopt and define the parameters of jus sanguinis subjectship in seventeenth and eighteenth century England.

For a different perspective, see John Vlahoplus, Toward NaturalBorn Derivative Citizenship,7 British Journal of American Legal Studies 71 (2018) (SSRN version available here) and John Vlahoplus, 'NaturalBorn Citizen': A Response to Thomas H. Lee,67 American University Law Review Forum 15 (2018) (SSRN version available here).

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalismbecomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants, and his mastery of constitutional doctrine.

This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.

Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in the unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.

Professor Segall's book Originalism as Faith is forthcoming from Cambridge University Press in October.